>> host: well, this week a three-judge panel from the federal appeals court in washington, d.c. unanimously decided that the federal communications commission does not have the authority to regulate high-speed internet. on this edition of "the communicators," we'll talk with several parties involved in the net neutrality debate and potential implications of the court's decision. we'll start, first, with representative joe barton, a republican from texas, and the ranking member of the house energy and commerce committee which holds jurisdiction over telecommunications matters. first of all, representative barton, were you surprised by this decision? >> guest: no, i was not surprised. i'm very pleased by it, but i think the court did exactly what the law says in that the fcc does not have the authority under current law to regulate the internet. >> host: so does that move the issue of net neutrality back to

congress? >> guest: well, if it needs to be moved. i would, i would hope that chairman waxman and subcommittee chairman boucher and former subcommittee chairman markey in the house would, you know, let a sleeping dog lie and not, not go forward. the court ruling was 3-0. experts in the law more knowledgeable than i have indicated that they don't believe it can be overturned on appeal to the supreme court, and i am absolutely certain that if they do try to do something legislatively, there'll be a lot of conservatives like myself that would fight a legal change in the law. >> host: well, two questions. number one, your colleague, representative ed markey, has already said that the, the appeals panel should not be the last word when it comes to net

neutrality -- >> guest: well, of course, because it didn't go his way. [laughter] you know? if it had gone his way, he'd have been fine with it, but since this particular appeals court ruled what the law really is, he's not happy about that. >> host: well, can congress give the fcc power to regulate -- >> guest: sure. yeah. if we want to change the law, we can. you can't interpret your way to it. i mean, the court ruling is unequivocal in that regard, but we could certainly change the law and give them explicit authority which is, apparently, what mr. markey wants to do. >> host: so when do you expect some movement on this issue in your committee? >> guest: i will work to make sure there is no movement on it. i don't think we need to legislate. i think the internet is booming. i think telecommunication policy in america today which is based on free markets and private capital has been very, very successful, it's one of the few areas of the economy that is

expanding and is profitable. if it's not broke, don't fix it, so if they choose to move something, you know, we'll participate in the hearing, and we'll try to make sure that the free market witnesses have equal access to the committee, and i would predict that we will be able to defeat any bill that they tried to move to regulate the internet. >> host: in your view, mr. barton, what are some of the implications if congress does pass a bill saying that the fcc can regulate -- >> guest: well, you'd have less innovation on the internet, you'd have less freedom on the internet, you'd have over time a more restrictive internet, probably a higher cost internet, you'd slow down the broadband deployment. the private sector has spent billions and billions of dollars in the last decade putting in the infrastructure, and it's almost now ubiquitous that everybody in america not only

has a pc where they, you know, at their home and at their work, but they also have a handheld device, a blackberry or an iphone, that has access to the internet. we're in the middle of a big success story, and keep in mind all the court ruled was, you know, comcast said it reserved the right to charge people that used a lot of their, a lot of their broadband capacity for hi-definition video and stuff, that comcast reserved the right to charge them a little bit more and, perhaps, on occasion to manage access at high peak times. now, comcast actually never did it, they just reserved the right to do it, and the fcc said that comcast did not have that right and that, and the fcc said that we, the federal government,

can't set the terms and conditions for people that are providing the become bone of the internet -- backbone of the internet, the actual infrastructure. the court ruled that the fcc didn't have that authority and that the comcasts of the world who make the investment can, can make sound business management decisions, people who use more and use it more frequently might have to pay a little bit more. but comcast nor any other provider has ever tried to restrict access in the sense that, you know, little guys don't have the same access as big guys. they've never even attempted that. >> host: well, we've been talking a lot on this program recently about the national broadband plan which was just introduced. how does this decision, in the your view, affect that plan? >> guest: well, i think it makes some parts of, you know, one of the things that the broadband plan has proposed or at least just put up for discussion is

regulating the internet under title ii of the federal communications act. i would say that this ruling makes that a moot point. i don't think there would be much support for that. the broadband policy that the fcc has proposed also wants to convert the universal service fund from a hard line telephone service to a fund to compete or at least to subsidize the private sector in deployment of broadband throughout america. i'm not opposed to broadband being deployed throughout america, but i don't see if the private sector is doing it with its own funds why we need to subsidize or in some cases supplant public funds with

private funds. so i think this ruling makes certain parts of their broadband proposal more difficult to enact. >> host: just to go back to the title ii, that would essentially if they move broadband under title ii, it would essentially allow the fcc to regulate like it does land lines right now, correct? >> guest: correct. >> host: senator kerry was quoted as saying that congress needs to act. >> host: essentially, he's saying that he thinks it should be moved to title ii, correct? >> guest: well, that'd be one interpretation of the remarks. what i think your listeners need to understand is that senator kerry and congressman markey want an internet that the federal government through the

auspices of the federal communications commission has more control over. people like myself want an internet that is as free as possible of government interference. there may be general guidelines that the fcc says for, you know, access, but in the specific case we let the private sector fund the internet, we let the private sector through free market interaction determine the contracts by which the big users like google and, you know, interact with verizon or at&t or comcast. so we have it as government-free as possible. senator kerry and congressman markey, although they call it net neutrality, that's kind of a wolf in sheep's clothing. they want an internet that the fcc, you know, sets terms and conditions on, has regulatory authority.

that's what would happen if you put the internet and broadband under, under title ii of the federal communications act. >> host: they're talking about how this is going to become a big lobby effort, lobbying effort, and millions of collars could be ex-- dollars could be expended by companies and interest groups who are involved -- >> guest: well, people that want to regulate the internet are going to try and overturn the court ruling legislatively, and i don't, i don't dispute that an act of congress can trump a court ruling. i agree, but i don't think the congress needs to act. i think the court ruled properly, i think the internet has been a huge success, i think our general broadband policy that we put in place in the 1996 telecommunications act has been a big success. i don't want an activist fcc that's stepping in and dictating investment decisions and also

setting terms and conditions for, for pricing and access to the internet. mr. markey and senator kerry appear to want that. i don't, and i don't think the american people do, and i don't think the majority of the users of the internet do if you explain the issue to them. what confuses the issue is the term that is used, net neutrality, is something that if you ask people if you're for net neutrality, everybody would answer, yes. but as it's implemented, net neutrality by mr. markey and senator kerry is not, it's not neutral. it's just the opposite. it's a government regulation of the internet. >> host: joe barton is the ranking member of the energy and commerce committee in the house of representatives. congressman, thank you for joining us on "the communicators." >> guest: my pleasure. >> host: well, one of the consumer groups that is very active in the debate on net neutrality is called free press. we also talked with marvin

laurie who is the general counsel for that group, and, in fact, he argued on behalf of the group in front of the flee-judge panel. -- three-judge panel. >> host: when you were arguing in front of the three-judge panel, what was your strategy? >> guest: well, by the time i argued, the fcc had already argued, and it was pretty clear by that point that we were going to lose, so the question was how broad or narrow would the ruling be? so the strategy was just to encourage the judges to have very clear guidance to the public and the fcc which is exactly what the court did. and the court was very clear in the ruling that the fcc would probably have to scrap its current regulatory framework in order to protect consumers on the internet. >> host: when you said you knew you were going to lose, could you give some brief indications of how you got that vibe? >> guest: well, at that point comcast and their intervener had argued and gotten a few

softballs, and what the fcc had argued was that the d.c. circuit was incredibly aggressive, didn't seem to buy any of the arguments. i had a pretty good idea we were going to lose, it's a very ideological court, and the last question that was asked of the fcc was, if you're going to lose, how do you want us to rule against you? so when the court asks you, how do you want to lose, that's a pretty bad sign. >> host: one of the seasonses you used was we were given the guidance we wanted but the answer we didn't. could you expand on that? >> guest: well, we wanted to make sure the court made it very clear what the fcc would have to do to protect consumers. the fcc believes they have a mission to keep the internet open and free to all americans to insure democratic speech, that's still available and carriers can't just block new innovative technologies. so the fcc really needs guidance, what should they do? we were hoping that the fcc could continue on their curve

regulatory -- current regulatory framework which is flawed, but as it turns out, they can't. they have to adopt the more correct statutory framework to regulate broadband. >> host: is that the title ii that we hear about? >> guest: the analogy i try to use, if you remember, people were talking about the financial collapse and deregulation, people talk about cdos, the instruments that are kind of like insurance but not regulated like insurance. what the fcc did in the bush administration was something similar. they classified, you know, a network technology which is clearly a network as though, you know, access to the internet as though it were twitter or some unregulated technology. so they have to do, essentially, call insurance, insurance. call a network title ii, not title i. internet access is not twitter, it's more like the phone network. >> host: so if say, per se, the fcc wanted to adopt title ii, is

it as simple as the commissioners meet, they debate about it and there's a vote? >> guest: it's that simple. you just need three votes from the commission. it's clearly, in my opinion, the obvious way of reading the statute. justice scalia in a dissent with three other justices thought it was the obvious way of reading the statute, and several years ago when commissioner copps dissented from the original order changing the statutory framework from title i to title ii, he described this as a gigantic leap into the fcc's no man's land. so i think that'll be an easy thing to change if the fcc can withstand the political pressure. it's not a legal question so much as a political question, and the carriers are very, very powerful. they give a lot of money to congressmen, they have a lot of influence in washington, and it's really a question of will the public stand up and stand with the fcc in doing the right thing, or will the carriers have their way?

>> host: so specifically on the political front do you think chairman genachowski has the will to do that? >> guest: i think chairman genachowski is a great, smart guy. i do think that any person who wants, any regulator who wants to act in favor of the public really needs the public standing loud and strong with them. i mean, it takes a lot of will to stand up to these powerful, powerful carriers, a lot of d.c. influence. and if the public stands with him and says, you know, we stand for an open internet, we believe we should have access to any site on the internet, the internet in the u.s. should be freer than it is in china even if it's delivered by private companies, right, if the public stands with julius genachowski, that makes it a lot easier for him and the other two commissioners whose votes will be needed to do the right thing. >> host: as far as responses to this, one of those responding was the former chairman michael powell, and he said specifically when he was talking about title ii, he said that if the fcc

wanted to establish itself as the internet overseer, it would continue to have serious jurisdictional problems. how would you respond to that? >> guest: michael powell is wrong, and he's the one who got us into this mess. it was his decision when he was chairman to start deregulating and to reclassify things that really harmed our infrastructure. and he's absolutely wrong. if the fcc reclassifies, what they do is they then have the authority to regulate internet access which is the access provided by cable and phone companies, not -- and they will never have the authority to regulate things on the internet like you sharing photos on facebook or twitter. what michael powell did was confuse that distinction. >> host: he talked about the title ii aspect, but when you posted on your blog, you were somewhat hopeful in some areas. could i ask you about what this decision means for elements of the national broadband plan? >> guest: well, that's where i'm slightly less hopeful actually. so this, this decision goes far

beyond network neutrality. network neutrality is the concept people should be able to go anywhere they want on the internet and not need permission from their phone or cable company. there's a coalition called savetheinternet.com organizing around net neutrality. but beyond that, this jurisdictional ruling implicates a whole range of things the fcc could do, and the general counsel posted a blog about it including things like insuring access to all americans in rural areas and in underserved areas, making sure that we have cybersecurity, consumer protection, privacy. there's a whole range of things that are implicated by this court decision that really, i think, necessitate the fcc to go back to the drawing board, reverse the terrible policies adopted by michael powell and that commission, and put the fcc on firm regulatory footing for the major communications infrastructure of our time, the internet. >> host: chairman waxman had said that he would work with

other democrats on the house energy and commerce commission on possibly finding ways to give the commission more legal authority. what could they do from a congressional standpoint? >> guest: well, i mean, congress could pass a statute that would clarify this issue. i'm a little, i'm a little skeptical that congress can move quickly enough and in the meantime, the fcc should have to get back within the regulatory framework that exists and over the next two years congress can debate the issue and, you know, there'll be a full-out press by the phone and cable companies to try to hijack the process. in the meantime, thes to make sr broadband infrastructure, which has fallen far behind in terms of speeds, prices, openness, that our country doesn't fall behind in this critical infrastructure and hurt our economy in the next few years. >> host: our guest serves as a law professor, also a general counsel for free press.

find out more about the response to the decision, freepress.net. thanks for your time this morning. >> guest: thank you so much. >> host: also on "the communicators" this week, howard simons, a lawyer who argued on behalf of the national cable and telecommunications association. >> host: mr. simons, does this week's decision about the comcast end at least the discussion about the authority that the federal communications commission has over broadband providers? >> guest: does it end it? >> host: yeah. >> guest: no. i think it may take it to a different chapter, but i don't think it ends it at all. there's been a lot of talk in the last couple of days since the decision came down that this is the end of the fcc's authority over broadband, lots of apocalyptic statements from the proponents of net neutrality, some within the commission and others. but i think what the decision really says is that the fcc has to be more careful, more rigorous in finding sources of

authority to, to regulate in this area. >> host: you said this could open the next chapter. what does that chapter mean? is that what we hear about this week, title i versus title ii? >> guest: well, that chapter was opened already. net neutrality proponents early this year, in fact over the last couple of year, have argued that title ii which is the part that regulates the telephone utilities, is the proper source of authority for broadband regulation. that's not a new idea, that's an idea that's been kicking around for years. i think the net neutrality proponents have seized on the court decision this week to give more momentum to that, and that certainly will be part of the debate. but i think an equal part of the debate will be the ability of the fcc under title i which is the part of the communications act that more lightly regulates information services, whether title i remains available to the fcc as a source of authority.

i, i think there is a serious debate to be had over the extent to which title i does remain available. >> host: and is there a way to expand title i to give the fcc more legal authority? >> guest: i wouldn't say expand title i. i think what the d.c. circuit said this week is something it has said in a number of other cases over the past couple of years, and that's that title i is not a blank check for the fcc. it is a source of flexible authority, it has been used that way by the fcc for over 40 years now. and the d.c. circuit, the court didn't take that authority away. what they said to the commission was, if you want to use title i, you've got to link the exercise of authority in that title to some affirmative grant of authority that congress has given you in some other parts of the communication act, and that sounds like legal mumbo jumbo, i guess, but what it does is it's

a framework designed to keep the commission focused on how it uses title i authority so that it is linked to their statutory responsibilities and not totally open-ended. >> host: before this decision the chairman had announced the idea of formalizing four principles as it were when it dealt with the internet and adding two more. what does the decision, do you think, mean for that process of formalization? does it stop it? does it change it? >> guest: i don't think it necessarily has to stop it. i think what the decision does is put the commission to the test of articulating bases in the communications act for those principles. and, in fact, the fcc itself recognized that test even prior to the court decision this week. in the announcement of the proposed rules last fall, the

fcc itself asked the question, which provisions of the communications act can we link our proposed net neutrality rules to in order to exercise our so-called title i authority? so this is not a new issue even for the fcc. they recognized this was something they would have to lay out in an order in order to justify their rules under title i. >> host: since so much went back to the original act, do you think that because of this decision and others a reworking of the act by some would be an effort that would be made? >> guest: i think, certainly there are those that have called for that in the communications industry. there are folks on the hill who have suggested maybe it's time to look again at the communications act and update it. i think those efforts are always appropriate to consider. i think the communications act even as it stands today is a pretty robust document that

potentially provides authority for the fcc to regulate in the broadband area if it proceeds carefully and if it can justify it. i think the ball's back in the fcc's court to explain how they can do that. i think the d.c. circuit decision is not even a wake-up call, it's more like the snooze button going off saying if you want to use title i authority, you've got to be rigorous. you have got to be analytically precise. the problem with the order that was overturned was it was none of those things. >> host: on the aspect of possibly reclassifying as title ii, if there are legal questions that have to be addressed if that reclassification takes place, what are some of those questions? >> guest: the fundamental question is, what has changed since 2002 when the fcc first classified broadband service as an information service? i think there's a real factual

hurdle that the commission woul find difficult to get over because the characteristics of broadband service the commission relied on in 2002 really haven't changed that much. internet access is really a service that connects people to the internet, the underlying transport, the broadband pipe, if you will, is not separately sold to people. you don't buy a pipe plus internet access. when the supreme court upheld the fcc's determination that broadband service was an information service, they, they themselves, the court itself relied on that factual determination. there was quite a debate back and forth between the majority opinion and the dissent over whether there were two separate offerings or one. was it a pizza with toppings? yes, that's one offering. or was it a dog on a leash, two separate offerings?

that was the debate. the fcc said it was a pizza with toppings, and the supreme court agreed, and it really hasn't changed very much since then. so they're going to have to say what characteristics are different, and i think they're going to have a hard time. >> host: some have advocated for this reclassification, do you think that the commission has a will to do it? >> guest: i think it's too early to say. certainly there have been people at the commission who have long advocated this approach. i think the commission, republican and democrat dating back to the '90s, to the clinton administration, has resisted those calls and correctly so because of the complexity of regulation that reclassification would wring -- bring down on broadband. title ii regulation is not just telephone regulation. title ii regulation is railroad regulation and, in fact, the communications act's telephone section was lifted from the interstate commerce act from the 1880s designed to regulate railroads. and that, in the turn, was

lefted from centuries of english common law that go back to cartage laws, carting hay around in england in the 1700s. that's not a regulatory framework that's appropriate for broadband in the 21st century. >> host: were you surprised by the decision, especially the unanimous decision from all three judges? >> guest: in all honesty, i was not surprised by the decision. i think the judges were awfully clear in their questions. it's a truism when you argue cases that you can't really conclude very much from oral argument, but in this case i think the oral argument really did foreshadow the decision. >> host: finally, a perspective from mark an am ericson. when you put out the statement on the comcast decision, you called this a dangerous situation. why use those words? >> guest: well, you know, it's a dangerous situation in that currently there's under the existing legal theories that the commission has cobbled together there is no recourse if an

internet access provider blocks lawful content or refuses to let you go to a web site that you want to go to or interferes with your communications over the internet. so, you know, that is a situation that i think most policymakers think is not tenable, certainly not what congress intended in the '96 telecommunications act. >> host: and then later on in the statement you said that the decision invited the commission to proceed against broadband providers under title ii. how did you goat to that? >> guest: right. in many ways, i think this is a very good decision for us, for the internet community and consumers -- >> host: which you represent. >> guest: which i represent. it's a clear repudiation of the legal foundation beginning in 2002 that the fcc put together of relying on what they call ancillary authority to, to govern and police the activities of internet access providers for doing the wrong kind of things.